MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Oct 14 2016, 9:32 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE M.V. Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Robert J. Henke David E. Corey Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of: October 14, 2016 V.K. (Minor Child), Child in Court of Appeals Case No. 03A04-1604-JC-736 Need of Services, Appeal from the Bartholomew and Circuit Court M.V. (Mother), The Honorable Stephen R. Appellant-Respondent, Heimann, Judge The Honorable Heather M. Mollo, v. Magistrate Trial Court Cause Nos. The Indiana Department of 03C01-1505-JC-2515 03D01-1401-DR-31 Child Services, Appellee-Petitioner
Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016 Page 1 of 16 M.V. (Mother), Appellant-Respondent,
v.
J.K. (Father), Appellee-Petitioner
Baker, Judge.
[1] M.V. (Mother) appeals the trial court’s decision to combine the permanency
and custody hearings for her daughter, V.K., following the dissolution of
Mother’s marriage to J.K. (Father) and the adjudication of V.K. as a Child in
Need of Services (CHINS). Mother argues that the process of holding a
combined hearing deprived her of her due process rights, that the trial court
erred when it restricted her parenting time, and that the Department of Child
Services (DCS) prematurely closed the CHINS case. Finding no due process
violations and no other error, we affirm.
Facts [2] V.K. was born on November 12, 2012. Mother and Father married on
December 12, 2012. They later separated, and on January 3, 2014, Father filed
a petition to dissolve the marriage. He requested that the court conduct a
provisional hearing to determine custody issues. On February 21, 2014, a
provisional hearing took place, and the court awarded Father “temporary care,
Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016 Page 2 of 16 custody, and control” of V.K. App. p. 41. Mother had visits every other
weekend.
[3] On May 17, 2015, Father asked a neighbor for a diaper and queried whether he
could leave V.K. there while he attended a job interview. The neighbor noticed
that the child’s clothes were soaked in urine and that she appeared to have a
bad diaper rash. On May 18, 2015, Father approached the same neighbor and
again left V.K. with the neighbor, even though the neighbor was unwilling to
care for her while Father was at work. The neighbor observed that Father
appeared to be under the influence when he brought the child over. The
neighbor also noticed that V.K.’s diaper rash had worsened and that she was
still in the same diaper from the previous day, and the neighbor took her to the
emergency room. The hospital staff noted that the child had severe diaper rash
that was likely the result of neglect.
[4] V.K. was removed from Father’s home by DCS, and Father was arrested for
neglect of a dependent. On May 20, 2015, DCS filed a petition alleging that
V.K. was a CHINS due to the severity of the diaper rash, concerns for neglect,
and concerns for substance use such that the child’s safety could not be ensured.
On July 10, 2015, the trial court found that V.K. was a CHINS.
[5] On September 22, 2015, the court issued a dispositional decree. It ordered
Father to complete a substance use assessment and comply with any
recommended treatment; it also ordered Father to participate in Fatherhood
Engagement to address co-parenting, budgeting, transportation, and childcare,
Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016 Page 3 of 16 and to follow all recommendations. The court ordered Mother to participate in
home based case management to address parenting, co-parenting, discipline,
employment, and childcare, and to follow all recommendations; Mother was
also ordered to complete a comprehensive evaluation to determine her need for
substance use treatment and mental health treatment, and to complete any
recommended treatment. The court also ordered both parents to, among other
things, attend all scheduled visitations with V.K. and comply with all visitation
rules and procedures, to submit to random drug screens within twenty-four
hours of request or on demand, and to contact the family case manager every
week to allow the manager to monitor compliance with the CHINS matter.
[6] Following this order, DCS requested authorization for a trial home visit with
Father, stating that Father had been participating in Fatherhood Engagement
and completing treatment goals, that Father had completed a substance abuse
assessment and no recommendations were noted for him, that Father had been
participating in overnight visits with V.K. and those visits were progressing
well, and that it would be in the best interests of the child for a trial home visit
to begin with Father. On September 28, 2015, the trial court granted the
request, and V.K. returned to Father’s home.
[7] Meanwhile, on September 7, 2015, Mother and Father’s marriage was
dissolved. The trial court did not determine custody at that time because of the
ongoing CHINS case. On October 29, 2015, a periodic case review hearing
took place in the CHINS case. The trial court noted that Father had complied
with the child’s case plan but Mother had not. The trial court further noted that
Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016 Page 4 of 16 DCS and Father had concerns with Mother having unsupervised parenting time
because of ongoing concerns for violence and Mother’s mental health. The trial
court stated that it was appropriate to consider permanent placement of V.K.
with Father; that Father had enhanced his ability to fulfill his parental
obligations but that Mother had not; that Father had cooperated with DCS but
that Mother could improve in her level of cooperation; and that Mother’s
visitation with the child shall remain supervised.
[8] On January 14 and February 19, 2016, pursuant to the agreement of the parties,
a combined permanency hearing in the CHINS case and custody modification
hearing in the dissolution case took place. On March 7, 2016, the trial court
awarded sole legal and primary physical custody of V.K. to Father, and it
awarded Mother four hours of supervised parenting time every other week. It
entered the order in both the CHINS case and in the dissolution case. On
March 16, 2016, the trial court granted DCS’ motion to close the CHINS
proceeding. Mother now appeals.1
1 Mother is appealing the orders in the dissolution case and in the CHINS case. She served notice of appeal to Father, but her caption on her appellate brief reflected only an appeal of the CHINS case and omitted the dissolution case. Thus, although Father had a right to file a brief in this appeal to contest Mother’s arguments regarding custody in the dissolution case, we understand why he did not do so. Because we try to resolve CHINS and child custody cases as expeditiously as possible and because we are ruling in his favor, we have not stayed the appellate proceeding to afford Father the chance to file a brief.
Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016 Page 5 of 16 Discussion and Decision [9] Mother argues that the process of holding a combined hearing deprived her of
her due process rights, that the trial court erred when it restricted her parenting
time, and that DCS prematurely closed the CHINS case.
I. Combined Hearing [10] Mother first argues that she was deprived of her due process rights when the
trial court combined the permanency and custody hearings and that the
combined hearing created a high risk of error because it allowed DCS, rather
than Father, to prove Father’s custody case.
[11] Due process protections bar “state action that deprives a person of life, liberty,
or property without a fair proceeding.” In re G.P., 4 N.E.3d 1158, 1165 (Ind.
2014) (citation omitted). Due process protections are vital during all stages of
CHINS proceedings “because every CHINS proceeding has potential to
interfere with the rights of parents in the upbringing of their children.” Id.
(internal quotation marks and citation omitted). Due process requires “‘the
opportunity to be heard at a meaningful time and in a meaningful manner.’” In
re K.D., 962 N.E.2d 1249, 1257 (quoting Mathews v. Eldridge, 424 U.S. 319, 333
(1976)).
[12] A party’s constitutional claim is considered waived when it is raised for the first
time on appeal. Hite v. Vanderburgh Cnty. Office of Family and Children, 845
N.E.2d 175, 180 (Ind. Ct. App. 2006). Our review of the record reveals that
Mother never objected to the combined hearings based on a due process Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016 Page 6 of 16 argument; instead, she explicitly consented to it. When the trial court suggested
a combined permanency and custody hearing, Mother’s counsel responded:
“And I guess it seems to me that all of the evidence we have to present towards
whether that permanency plan should be entered or not, would also be the
evidence as far as a custody determination.” Tr. p. 39. When the trial court
again asked, “So keep it all together?”, Mother’s counsel did not object. Id. at
39-40. Thus, Mother’s argument regarding the effect of the combined hearing
on her due process rights is waived on appeal.
[13] Waiver notwithstanding, Mother’s assertion that the combined hearing
deprived her of due process lacks merit. She provides no authority to support
her contention that the court’s decision to combine the permanency and
custody hearings was an error or that it created a high risk of error. See McBride
v. Monroe Cnty. Office of Family and Children, 798 N.E.2d 185, 197 (Ind. Ct. App.
2003) (finding no error when the court conducted a review hearing and a
permanency hearing at the same time when the appellant provided no authority
to support her contention that the simultaneous hearings denied her due
process). Mother concedes “that the trial court had the authority to
simultaneously exercise jurisdiction over both matters.” Appellant’s Br. p. 8.
See also Ind. Code § 31-30-1-12(a) (a court with jurisdiction over a child custody
or parenting time proceeding in a marriage dissolution “has concurrent original
jurisdiction with the juvenile court for the purpose of modifying custody of a
child who is under the jurisdiction of the juvenile court because the child is the
subject of a child in need of services proceeding”). Moreover, Mother was
Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016 Page 7 of 16 present and had counsel who represented her during the proceeding. Mother
testified and, through counsel, cross-examined DCS’s and Father’s witnesses.
We find, therefore, that Mother had the opportunity to be heard at a
meaningful time and in a meaningful manner. We decline to reverse based on
the trial court’s decision to hold the combined hearing.
II. Parenting Time 2
[14] Mother also argues that the trial court erred when it restricted her parenting
time and that it failed to make specific findings to support the restrictions.
[15] A decision about parenting time requires us to give foremost consideration to
the best interests of the child. Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind.
2013). We will uphold a parenting time decision if the record reveals a rational
basis for the trial court’s determination. Meisberger v. Bishop, 15 N.E.3d 653, 656
(Ind. Ct. App. 2014). Indiana recognizes that a noncustodial parent’s right of
visitation with his or her own children is a “‘precious privilege’” and that the
“noncustodial parent is ‘generally entitled to reasonable visitation rights.’”
Perkinson, 989 N.E.2d at 762 (quoting Duncan v. Duncan, 843 N.E.2d 966, 969
(Ind. Ct. App. 2006)). Indiana Code section 31-17-4-1 provides that “[a] parent
not granted custody of the child is entitled to reasonable parenting time rights
unless the court finds, after a hearing, that parenting time by the noncustodial
2 We infer that Mother is appealing this order under the dissolution of marriage proceeding, not under the CHINS proceeding, which has been closed.
Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016 Page 8 of 16 parent might endanger the child’s physical health or significantly impair the
child's emotional development.” The trial court must make specific findings to
support its parenting time order. Perkinson, 989 N.E.2d at 765. The party
seeking “to restrict parenting time rights bears the burden of presenting
evidence justifying such a restriction by the preponderance of the evidence.” Id.
(internal quotation marks and citation omitted).
[16] In the custody order, the trial court found that:
Father successfully completed services with the Fatherhood Engagement program and a substance use assessment with no needs identified; Father demonstrated stability in his housing and employment and created a childcare plan for V.K. while he is working; Father demonstrated a child-focused lifestyle and a commitment to co- parenting; Father demonstrated that he can provide a safe, stable, and loving home to V.K.; Mother failed to complete a mental health assessment; Service providers observed that Mother has unrealistic views about V.K.’s development; difficulty regulating her emotions such that she can become so emotionally upset that she is distracted from parenting her child; and difficulty in understanding and processing information as evidenced by excessive voicemails left by Mother in which she continues to ask questions to previously answered questions; and Father has concerns about Mother’s judgment as it relates to V.K.’s well- being because prior to DCS involvement, during parenting time granted by a provisional order in the dissolution of marriage action, Mother stopped giving V.K. medication for MRSA and tried to physically squeeze the MRSA out, resulting in V.K. being hospitalized.
App. p. 7-9.
Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016 Page 9 of 16 [17] Mother contends that “it is not clear what standard the trial court applied in
restricting Mother’s parenting time.” Appellant’s Br. p. 8. She also contends
that the trial court failed to make specific findings to support the restriction, and
that it erred when it did not specifically identify the standard set forth in
Indiana Code section 31-17-4-1 and when it did not make specific findings that
parenting time would endanger V.K.’s physical or mental health. The standard
for denying or restricting parenting time “‘requires evidence establishing that
visitation ‘would’ (not ‘might’) endanger or impair the physical or mental
health of the child.’” Perkinson, 989 N.E.2d at 763 (quoting Stewart v. Stewart,
521 N.E.2d 956, 960 n.3 (Ind. Ct. App. 1988)).
[18] We find that the trial court did identify the appropriate standard when it stated
the following in the permanency order:
20. The court finds that is [sic] shall be in the child’s best interest that custody be awarded to [Father].
21. The Court finds by clear and convincing evidence that the best interests of the child, [V.K.], is substantially served by granting [Father] sole legal custody and primary physical custody of [V.K.]
[19] App. p. 8-9. Further, it is apparent to us that the trial court applied the
appropriate standard when restricting Mother’s parenting time, as evidenced by
its stated concerns about Mother’s mental health, unwillingness to complete a
mental health evaluation, inability to regulate her emotions, and decision to
quit giving V.K. necessary medication, which resulted in V.K.’s hospitalization.
Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016 Page 10 of 16 These findings indicate that the trial court was concerned that time spent with
Mother would endanger or impair V.K.’s physical or mental health.
[20] Mother further contends that the combined hearing resulted in DCS, rather
than Father, proving that Mother’s parenting time should be restricted. We
disagree. Father testified, was cross-examined, and served as a rebuttal witness
during the hearing, providing his own evidence that, in addition to the evidence
presented by DCS, allowed the trial court to come to its determination.
Specifically, he testified about his concerns about Mother’s treatment of V.K.
when V.K. had MRSA, Mother’s unrealistic views of what is age appropriate
for a child, an occurrence of alleged domestic violence that took place while
V.K. was visiting Mother, and Mother’s inappropriate behavior that resulted in
a few visits being cut short, including one that involved the police. Further, we
note that Father presented two voicemails left by Mother to Father as examples
of Mother’s inability to conduct herself civilly and apparent unwillingness to co-
parent:
“Your [sic] not letting me talk to my daughter, to my daughter [sic]. I don’t have to go through [Family Case Manager] to do it. Okay. I don’t make a kid with [Family Case Manager], I made a kid with you unfortunately. It’s not on paper, you don’t have anything on paper. Okay, and whatever you have that’s hearsay, because that’s hearsay. You don’t have anything up to par, okay, and I’m also stated that in Indiana, in the State of Indiana, under the Indiana guidelines, I have different rights to talk to my child. I looked it up online, so I know what I’m talking about, and since you’re not letting me talk to my daughter, I don’t have to go through [Family Case Manager]. Okay, I didn’t make a kid with [Family Case Manager], I made a kid with you unfortunately,
Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016 Page 11 of 16 and you wanna act like a f**kin’ d**k-wad? And I can be the biggest f**kin b***h you’ve ever met and I’m not joking, You don’t wanna let me be around my child? Well (inaudible), but you have? That’s fine, but you know what? I’m stronger now, and I’m a lot better now than I ever was before and you are not going to break me, [Father].”
“I really don’t have anything to say to you, I just wanted to talk to my daughter, okay. And since you wanna be so f**kin’ selfish and keep her all to yourself, on Thursday, I have every bit of right to her, just as much as you do, and I’m not talking to you, because all [I] have is lies, and I’m tired of it. I have (inaudible) to you, and I have nothing more to say to you. Go be happy with your f**king n*****, I really don’t give a f**k. But she’s not gonna be around my child. . . .”
Tr. p. 150-52. We find that Father’s evidence alone would have been sufficient
to show by a preponderance of the evidence that Mother’s parenting time
restriction is warranted. The evidence presented by DCS merely corroborated
Father’s evidence. In sum, we find the evidence sufficient to support the trial
court’s restriction of Mother’s parenting time.
IV. Closure of CHINS Case [21] Finally, Mother argues that DCS prematurely terminated services when it
closed the CHINS case on February 19, 2016, and that the termination
“resulted in the denial of due process.” Appellant’s Br. at 11. She argues that
no impending deadlines or ongoing permanency concerns necessitated the
termination of services to Mother at that time because the trial court recognized
that a permanency hearing was not required until May 2016.
Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016 Page 12 of 16 [22] The purpose of a CHINS adjudication is to protect children, not punish parents.
In re N.E., 919 N.E.2d 102, 106 (Ind. 2010). The “policy and purpose of the
CHINS statutory scheme is not to remove children from their parents without
giving the parents a reasonable opportunity to participate.” In re J.B., --- N.E.3d
---, No. 20A05—1510—JC—1612, 2016 WL 4728565, at *4 (Ind. Ct. App.
2016). The CHINS adjudication does not establish culpability on the part of a
particular parent. In re N.E., 919 N.E.2d at 105. Because a CHINS
determination establishes the status of a child alone, a separate analysis as to
each parent is not required in the CHINS determination stage. Id. at 106. The
resolution of a juvenile proceeding focuses on the best interests of the child. Id.
“When the juvenile court finds that the objectives of the dispositional decree
have been met, the court shall discharge the child and the child’s parent,
guardian, or custodian.” Ind. Code § 31-34-21-11.
[23] On May 28, 2015, Mother was referred for home based case management to
address any necessary parenting education that may have needed to be
completed; Mother did not commit to participating in the program. On
November 2, 2015, Mother was referred for home based therapy and at the time
of the January 14, 2016, hearing, she had only participated in two therapy
sessions. On September 14, 2015, she completed a substance abuse assessment
and was not recommended for any additional services; however, the provider
indicated that Mother could benefit from mental health services in order to help
develop positive coping skills. On October 2, 2015, Mother’s family case
manager referred Mother for psychological services. Mother was scheduled for
Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016 Page 13 of 16 an evaluation on November 6, 2015, but she cancelled that appointment and
refused to reschedule due to the provider’s distance from her. Mother’s family
case manager then referred Mother to a provider closer to Mother, and an
evaluation was scheduled for December 22, 2015. Mother declined to attend,
saying that she did not have transportation. Mother’s family case manager
advised Mother that Mother’s therapist could transport her to her appointment
if transportation was a barrier. Mother also reported to her family case
manager that she was not willing to do that evaluation at times.
[24] Given these facts, we strongly disagree with Mother’s assertion that “[t]his was
not a circumstance in which Mother blatantly and repeatedly refused to
participate in services” but instead was “a situation where DCS required the
service, did not offer it, and then cited Mother’s failure to undergo the
evaluation as a reason why Father should be awarded custody and Mother’s
parenting time should be restricted.” Appellant’s Br. p. 11. At the October 29,
2015, review hearing, the trial court noted that Mother “has fluctuated as to her
willingness to participate” in a mental health evaluation and that Mother “has
questioned the need despite the treatment team seeing significant mental health
needs.” App. p. 31. Mother received numerous opportunities long before the
February 19, 2016, hearing, to participate in the services, and the record is clear
that Mother’s family case manager was responsive to her concerns about the
location of the services and transportation and made appropriate referrals and
suggestions to overcome those obstacles.
Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016 Page 14 of 16 [25] Thus, over the course of nine months, Mother had a reasonable opportunity to
participate in all court-ordered services. She failed to do so. She cannot now
credibly complain that she did not have a chance. Compare with In re J.B.
(reversing the part of the CHINS court’s order that discharged the parties and
terminated the CHINS case because the parents did not have a reasonable
opportunity to participate in the CHINS adjudication when the trial court
granted DCS’s request to close the CHINS case, with the CHINS finding intact,
before a dispositional decree was entered and before Mother could participate
in services). We find no error on the part of DCS, nor do we find that the
termination of services resulted in any deprivation of due process rights
because, as discussed above, Mother had the opportunity to be heard at a
meaningful time and in a meaningful manner.
[26] Moreover, Father complied with the trial court’s orders. The trial court found
that Father demonstrated stability in his housing and employment, that Father
created a strong plan of care of his daughter while he is working, and that
Father showed a child-focused lifestyle and a commitment to co-parenting. In
short, the trial court found that Father demonstrated that he can provide a safe,
stable, and loving home to V.K. Under these circumstances, the trial court is
required to close the CHINS case. See Ind. Code § 31-34-21-11. Therefore,
regardless of Mother’s shortcomings, the trial court did not err in finding that
Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016 Page 15 of 16 the objectives of the dispositional decree were met and in discharging the
CHINS case.3
[27] The judgment of the trial court is affirmed.
Vaidik, C.J., and Najam, J., concur.
3 In Mother’s final argument, she complains that the trial court’s order severely limited the amount of time she and V.K. could spend together and prevents them from spending any holidays together. We note that, pursuant to the child custody modification statutes, Mother is free to petition the court to modify the custody order in the dissolution case.
Court of Appeals of Indiana | Memorandum Decision 03A04-1604-JC-736 | October 14, 2016 Page 16 of 16